Surrogacy Law in India

 

Surrogacy Law in India

Surrogacy has become a significant method for many couples, especially those facing fertility challenges, to have children. In India, the practice of surrogacy has gained considerable attention over the years, both domestically and internationally. However, the growth of surrogacy also led to concerns about exploitation, ethical issues, and the rights of surrogates, children, and intended parents. To address these concerns, India introduced the Surrogacy (Regulation) Act, 2021, which significantly redefines the legal framework surrounding surrogacy in the country.

Evolution of Surrogacy in India

Historically, India was a popular destination for commercial surrogacy, with many foreign couples traveling to the country due to lower costs and less stringent regulations. This led to a booming industry where surrogates were often paid for carrying babies for other families. However, this commercial surrogacy model raised ethical concerns, including the exploitation of surrogate mothers, lack of legal protections, and the potential for child trafficking.

In response to these challenges, the Indian government introduced the

Surrogacy (Regulation) Bill, 2019

, which was later passed as the

Surrogacy (Regulation) Act, 2021

, marking a significant shift in the country’s surrogacy landscape.

Key Provisions of the Surrogacy (Regulation) Act, 2021

Ban on Commercial Surrogacy

One of the most important features of the new law is the complete prohibition of commercial surrogacy. This means that surrogacy arrangements involving financial compensation beyond medical expenses and insurance are no longer allowed. The law prohibits the exploitation of surrogate mothers for commercial gain.

Altruistic Surrogacy for Indian Couples

The law permits only altruistic surrogacy, where the surrogate mother cannot be paid beyond the medical and insurance expenses incurred during the process. Only Indian married couples who meet specific eligibility criteria can seek surrogacy services. This ensures that surrogacy remains a supportive, ethical practice rather than a commercial enterprise.

Eligibility Criteria for Intended Parents

The law restricts surrogacy to Indian citizens, and only married heterosexual couples who have been married for at least five years and are unable to conceive naturally can pursue surrogacy. They must be aged between 23 and 50 for women and 26 to 55 for men. Additionally, intended parents must be mentally and physically healthy to ensure they are capable of raising a child.

Rights and Welfare of Surrogates

Surrogates are granted legal protections under the Act. The surrogate mother must be an Indian citizen, married, and a mother of at least one child. She can only act as a surrogate once, ensuring that surrogacy does not become an ongoing business for women. Surrogates also receive medical, insurance, and legal support during and after the pregnancy to protect their rights.

Role of Fertility Clinics

Fertility clinics that perform surrogacy procedures must be registered and comply with guidelines set by the government. The clinics are tasked with ensuring that both the intended parents and surrogates are well-informed about the process and their rights, and they are responsible for maintaining ethical standards.

Legal Parentage and the Child’s Rights

The Surrogacy Act ensures that the child born through surrogacy has the same legal rights as a child born naturally. The intended parents are legally recognized as the parents of the child, and they are entitled to apply for a birth certificate in their name. Surrogacy agreements are designed to prevent disputes over parental rights.

Ethical Considerations and Future Implications

The Surrogacy (Regulation) Act, 2021, represents a significant step towards regulating surrogacy in India while attempting to balance ethical considerations with the needs of families. By banning commercial surrogacy, the law seeks to protect women from exploitation and prevent the commercialization of the surrogacy industry. It also ensures that surrogacy remains a compassionate act, rather than a business venture.

While the law has been hailed for addressing the ethical concerns surrounding surrogacy, some critics argue that it may limit access to surrogacy services for certain groups, particularly those who do not fit the legal criteria, such as unmarried or foreign couples. Nonetheless, the law marks a decisive shift toward a more regulated and ethical surrogacy system in India.

Conclusion

The Surrogacy (Regulation) Act, 2021, has redefined the surrogacy landscape in India by focusing on altruism and protecting the rights of all parties involved. While it limits access to surrogacy for foreign or unmarried individuals, it aims to ensure that the practice remains safe, ethical, and non-exploitative. By regulating surrogacy practices and establishing clear guidelines for intended parents, surrogates, and fertility clinics, the law is a step forward in safeguarding the well-being of all parties involved, particularly the child born through surrogacy.

Footnote